Tzarat Tzaratah

Yevamot (1:1) | Yisrael Bankier | a year ago

If a married man passes away without having any children, one of the
surviving brothers (from a common father) is required to either perform
yibum, effectively marrying the widow, or chalitzah, the process
through which she is then free to marry anyone else. If the widow is
related to the brother in a way that yibum would constitute an issur
ervah (biblically forbidden relationship) then he is not required to
perform the mitzvah of yibum. If there are no other brothers, then
she is free to marry another, even without chalitzah. The Mishnah
(1:1) teaches that if the late brother left two widows, then the second
wife, the tzarah, is exempt from yibum and chalitzah as well, even
though she is not related to the surviving brother. Last cycle (Vol 9,
Iss1) we focused on the nature of this exemption.

The Mishnah explains that if there was another brother that was able
to perform yibum and he did so to the tzarah, and then that brother
also passed away, not only is the original tzarah still exempt, but
also additional wives of the second deceased brother – tzarat
tzaratah.

The Bartenura (citing the Gemara) explains that the exemption of the
tzarah (from the first marriage) is learnt from the pasuk that
prohibits one from marrying his wife's sister: "You shall not take a
woman in addition to her sister, to make them rivals (litzror), to
uncover the nakedness of one upon the other (alieha) in her lifetime."
The Gemara understands that the apparently superfluous word alieha
teaches that the prohibition applies even in the context of yibum. In
other words, one is not allowed to perform yibum to an issur
ervah1. Similarly, they learn from litzror, that the exemption
applies to the tzara as well. Since it would have been sufficient to
write latzor, the use of liztror exempts the case of tzarat
tzaratah as well.

Tosfot R' Akiva Eiger (s.v. ve'eshet achiv me'imo) questions the
necessity for a pasuk to teach the exemption of tzarat tzaratah. The
Mishnah (3:9) explains that if two brothers married two sisters, and
then one brother passed away followed by the wife of the surviving
brother, he is not allowed to perform yibum. This is because at the
time when the brother passed away, the yavama was forbidden to him.
The Tosfot explain that the even though after his wife dies, the
sister is no longer forbidden, since she was previously forbidden, she
is now forbidden as his brother's wife (another forbidden relationship).
They add that the tzarah would also be exempt. Returning to our cases,
the same logic should apply. Once we have learnt that yibum does not
apply to the tzarah, she is defined as an issurervah. This is
because she is an eshet ach she'lo be'makom mitzvah – his brother's
wife not in the context of yibum. That being the case, the exemption
of tzarat tzaratah appears unnecessary, since she in any case is a
tzarat ervah.2

The Chazon Ish answers that there is nothing wrong with the tzara
herself. It is only since she is a tzara of an issur ervah that she
is exempt from yibum and chalitza. Consequently, she does not have
the capacity to exempt another tzarah (from the second marriage). He
cites the Rashba in support of this logic. The Tosfot ask that an
additional case should be listed where a forbidden relationship exempts
a tzara. This is where the widow had been in a previous marriage and
was divorced on condition she is not allowed to marry the surviving
brother. The Rashba answers that only an issur erva has the capacity
to exempt a tzara and not one that has an external reason prohibiting
her to the yabam.

But what about after the other brother performs yibum and then passes
away? Is the tzara not already defined as an erva? She was excluded
from the mitzvah of yibum from the first marriage! The Chazon Ish
answers that after the second brother performs yibum the first
marriage does not end or is it replaced – it is transferred to the
second brother. When the second brother then passes away, the original
tzara is still defined the eshet ach of the first brother and the
issue returns that it is only if it is be'makom mitzvah that yibum
can be performed. Consequently, our tzara is not defined as an issur
ervah. Since it was the original erva – an external reason – that
exempts her even now for the mitzvah of yibum, that alone cannot
exempt tzarat tzarah from the second brother. This then explains why
we need a pasuk to teach that even tzarat tzaratah is exempt from
yibum or chalitzah.

1 The pasuk is necessary since the one's brother's wife is normally
also considered an issur ervah, yet it is permitted in the context of
yibum.

2 The Tosfot R' Akiva Eiger cites Rashi (8b, s.v im ken) who
applies the same logic when explaining how R' Shimon, who derives the
exemption of a tzarah from a different pasuk would also learn the
exemption of tzarat tzaratah.